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State v Irowen [2002] PGNC 99; N2239 (23 May 2002)

N2239

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 481 of 2002

THE STATE

-V-

KENNY REUBEN IROWEN

WEWAK: KANDAKASI, J.
2002: 21st and 23rd May

CRIMINAL LAW - Sentence – Worse case of grievous bodily harm – Guilty plea – No prior convictions - Prisoner forcing two of his wives to strip down naked then picked up an argument with them before attacking them with a bush knife – One sustained a deep cut to her left shoulder with muscles and bone of the top of the joint completely severed resulting in an estimated 25% permanent disability – The other sustained an almost severed right big toe requiring steel wiring and a deep wedged chopped wound dividing muscles, bones and arteries on that side as well as a complete chop off of her left little and ring fingers – Prior medical history of severe attacks on one of the women requiring hospitalization – No evidence of compensation or the prisoner having completely changed his habit of severely attacking his wives – No expression of remorse in Court – Aggravating factors outweighing factors in mitigation – Maximum prescribed sentence of 7 years imposed to be served cumulatively – Criminal Code ss 319 and 19.

Cases cited:

The State v. Abel Airi (28/11/00) N2007.
The State v. Isaac Wapuri [1994] PNGLR 271.
The State v. Philip Susuve Raepa [1994] PNGLR 459.
The State v. Apa Kuman (20/12/00) N2047.
The State v. Nickson Pari (N0.2) (10/01/00) N2033
The State v. Darius Taulo (15/12/00) N2034.
The State v. Rex Rongo (20/12/00) N2035.
Ure Hane v The State [1984] PNGLR 105.
Goli Golu –vs- The State [1979] PNGLR 653.
The State v. Kenneth Penias [1994] PNGLR 48.
Seo Ross v. The State (30/04/99) SC605.
Acting Publice Prosecutor v. Haha [1981] PNGLR 205.
Public Prosecutor v. Kerua & Ors [1985] PNGLR 85.
The State v. James Gurave Guba (19/12/00) N2020.

Counsels;
Mr. M. Rarri for the State
Mr. D. Kari for the Prisoner

24th May 2002

KANDAKASI J: You pleaded guilty to two charges of causing grievous bodily harm to two of you wives, namely Lamokis and Roselyn after forcing them to strip naked on 22nd December 2001, which was contrary to s. 340 of the Criminal Code. Upon reading the depositions, which were admitted into evidence with your consent, I was satisfied that the evidence in them supported your guilty plea. I therefore accepted your guilty plea and convicted you on the charge presented.

Relevant facts

The relevant facts are straightforward. About 8:00 p.m. on 22nd December 2001, your two wives Lamokis, who is your first wife and Roselyn your second wife, and your children were sitting outside your house in your village at Imbras, Maprik East Sepik Province. You called the two of them out from where they were sitting into the house where you were. So they came into the house and you took them into the bedroom of yourself and Roselyn. Once inside that bedroom, you asked them to call their boyfriends’ names but they gave you no names. So you forced them to remove all of their cloths and stand before you naked. You then went outside the bedroom and got Lamokis’ bush knife and returned to the room and asked the two of them to reveal the names of their boyfriends and that you will do nothing to them. Immediately after that however, you swung the bush knife at Lamokis’ back three times and you hit her on her forehead with your fists twice. She felt pain and she grabbed you and the two of you fought. As you were fighting with her, you bit her right ring finger. In pain she called Roselyn to help by asking her to grab hold of both of your testicles and squeeze them and she obliged. That caused you to say it is enough and that you will not assault them again.

After you promised not to assault your two wives, they thought you were telling them the truth, so Roselyn let your testicles go. Then you all come out of the bedroom and you pulled Lamokis’ bush knife again and you swung it at Roselyn and nearly chopped of her left hand from the shoulder. That severed completely, the muscles, and the bone over the top of that part of her shoulder joint. She then ran out of the house naked in pain into one of her uncle’s coffee garden. You then turned to Lamokis, grabbed hold of her hand and swung the bush knife at her, cutting both of her legs and her left ring and little fingers into their joints. Thereafter, you left Lamokis and ran after Roselyn. That is when Lamokis ran away toward a small village but did not go into the village, as she was naked and also because of the injuries to both of her legs. She could not withstand it any longer and she fell down and collapsed unconscious at a coffee garden. Help eventually came to her when Pastor Bill Moses’ sister brought a skirt to her, followed by the pastor carrying her to the prayer house. She did not know what happened next until she woke up at the Brukam Health Center, when she realized that she was under a drip and was later taken to the Boram Hospital the same day.

As for Roselyn, once she got to her uncle’s coffee garden she saw you with a bush knife looking for her. She got scared of further attacks and she ran, still naked to a small village. Before she could reach the village, she saw a Benny and his wife Henni and Pastor Bill carrying Lamokis and they caught up with her. The Pastor got his towel and gave it to her and she covered herself with it. Then the Pastor’s sister gave her a skirt, which she changed into and removed the towel and put the towel underneath her cut arm and had it held up. That prevented further bleeding and she was taken to the Brukam Health Centre together with Lamokis. She was also taken to the Boram Hospital for further medical treatment.

They were appropriately treated at the Boram Hospital and they appear to have recovered but with some residual disabilities. Lamokis was left with a 25% permanent loss of function to her left shoulder. Roselyn’s disabilities if any were not ascertained at the time of the medical report on 26th December 2001, as that could not be ascertained until the healing process was completed. The doctor did not write off any disability.

The medical report describes the attacks on your wives as "savage" and "severe". It also mentions Lamokis been previously admitted to the hospital in 1999 after you had slashed her. That resulted in a deformed foot. Your attacks on her in 2001 included injuries to the already deformed foot which could have resulted in serious disability had it not been for the blood vessels remaining intact.

The offence and sentencing trend

You have been charged under s. 319 of the Criminal Code. That section creates the offence of grievous bodily harm and stipulates that anyone who does such harm to another must be imprisoned to a term no exceeding 7 years. A number of judgements have already dealt with offences under this section before imposing a variety of sentences. This I believe has been the case because as I said in The State v. Abel Airi (28/11/00) N2007, the exercising of the sentencing discretion in a sentencing judge is not a matter of mathematics. Instead, it requires an exercise of judicial discretion in such a way to do justice in the circumstances of a particular case by reason of which there might be differences of sentences.

Your lawyer drew my attention to the case of The State v. Isaac Wapuri [1994] PNGLR 271. That was a case in which the prisoner hit the victim, who was his sister-in-law with a vehicle hand brake cable on one of her eyes resulting in a 90% residual disability. He did that after the victim failed to get the prisoner to have sexual intercourse with him and she scattered all of his clothes all over the place in what he though was retaliation for his refusal. He was given 18 months in hard labour with 5 months deducted on account of time spent in custody. The balance of the sentence was suspended on condition of good behaviour bond and compensation of K500 cash and pigs to the value of K800.

In an other case, The State v. Philip Susuve Raepa [1994] PNGLR 459, the victim was rendered brain damaged out of a drunken brawl and after a skull operation to remove internal bleeding. The Court order K5,000 compensation and placed the prisoner on good behaviour bond on his own recognizance with a surety of K300.00 with judgement being deferred to future sittings of the court and for the prisoner to abstain from alcoholic drinks for 12 months until further orders.

In The State v. Apa Kuman (20/12/00) N2047, a sentence of 3 years imprisonment was imposed. The prisoner after having raped the victim cut her across her stomach to prevent her from calling out for help. That caused substantial damage to her left and right lobes, which bled profusely into the abdomen. Quick admission to the hospital prevented further bleeding and saved her from death due to loss of blood. The prisoner there was a young first offender.

In The State v. Nickson Pari (N0.2) (10/01/00) N2033, I imposed a term of 4 years and suspended part of it on terms, inclusive of good behaviour bond. That was a case in which the prisoner shot at and injured the victim on his left arm in the course of and in furtherance of an armed robbery. He was also a first time young offender.

A case, which comes close to the present case, is my own judgement in The State v. Darius Taulo (15/12/00) N2034. That was also a case of wife beating by a person without any prior convictions. As in this case the medical evidence revealed a consistent pattern of serious wife beating over the period 1993 to 2000. I imposed a wholly suspended sentence of 3 years on very strict terms as a form of alternative to time in prison because he pleaded guilty, he had no prior, he paid compensation, showed and expressed genuine remorse and was not going to re-offend. I also noted in his favour that, he was prepared to undergo the victim’s customary practice of compensation or restoration of relations and make peace. There was evidence also that, the innocent children of the marriage would suffer if he is imprisoned and a pre- sentencing report supported such a sentence. Furthermore, I noted in his favour that, he was not a danger to the society and that the society through a pre-sentencing report was prepared to help him to rehabilitate and that the victim was supportive of the sentence imposed.

In all of these cases, the prisoners pleaded guilty and that they were first time offenders. They all involved a single victim. Further there was an explanation for the commission of the offences although not all permitted by law. In the first case it was a case of a sister-in-law after failing to secure a sexual intercourse with the prisoner she reacted and the prisoner struck her once. In the second and last cases, they were cases of drunken behaviour. As for the third case, the offence was committed to conceal another offence while in the fourth case, it was a case of furtherance of the commission of another offence. The sentences were lenient in the first, second and last cases because of compensation payment or orders for payment of compensation.

Your case

Your case is distinguishable from all of the above case by reason of the factors I have just mentioned. You have committed the offences against two of your wives in a most humiliating way. You called them out from yours and their children. Then you took them into one of the wives’ bedroom and asked them to tell you the names of their boyfriends. There is no evidence to show why or what caused you to do that. You then forced them to strip down naked before you and you proceeded to attack one of them first with a bush knife. When the other came to hold you, you temporarily stopped and promised you would not attack them. Contrary to that, you used the bush knife and attack your wives again. You inflicted serious cuts to parts of their body and gave them great pain, which gave them no choice but to run out of the house naked. I assume this was even before theirs and your own children. Even then, you did not stop, you continued to go after them until other people came to their help. One of them was rendered unconscious and both of them required medical treatment at a hospital. If it were not for medical intervention I find that your wives could have died.

You have in the passed severely slashed your first wife Lamokis and she recovered from the hospital. That earlier attack on her resulted in a deformity to one of her foot. In so far has it shows that you have previously attacked your wife requiring hospitalization, I find your case similar to the Darius Taulo case (supra). However, unlike Mr. Taulo, you have neither paid any compensation to the victim and her relatives nor are you prepared to pay any compensation. You have not apologized and make it right with the victims. You have not taken any meaningful step therefore to move away from your habit of severely hurting your wives. There is no community proposal to help you to rehabilitate and become a better person. In Court, you did not express any remorse for what you have done. All that you did in Court is to ask this Court to be merciful toward you and consider your children. When I asked whether you thought of your children at the time of your attack, you answered that in the negative. You therefore, did not have any regard whatsoever, to the welfare and well being of the children when you attacked their mother.

I note from your lawyer’s submission that you are married to three wives, the two victims and another. It seems to me you are not in love with any of them. I say this because, if indeed you loved anyone of them, you could be married to only one of them. This is why it seems to me that, you found it easy to hurt them so badly. The full exposure of a female or male body to the opposite sex is usually left and reserved for normal people in the bedroom between married couples in the context of love making. Through that process a man and a woman become one. As I observed in The State v. Rex Rongo (20/12/00) N2035:

"... when God created man and woman, He made the woman a little lower than man by creating her out of the man’s ribs (Genesis 2: 21-23). Women are therefore, inherently not stronger than men. Because of that the Bible teaches that when a man and woman get married they become one flesh (Genesis 2: 24). Therefore a man needs to tender and care for his wife as his own flesh. The Bible also teaches that all human kind should love one another for that is the greatest commandment or law of God. ... Through our Constitution our country has adopted these very principles. Therefore, all citizens of our country and more so those who claim to be Christians should be the last to act contrary to those principles.

Unfortunately, these principles have been over-looked and many people are acting contrary to those principles even by those people who claim to be Christians. This has necessitate the enactment of the criminal laws."

Instead of acting in accordance with those principles, you wanted your wives to be exposed to people other then yourself unless you intended to kill them or otherwise completely disable them and keep them in the room naked. You did not respect their human persons and their dignity. What you did was not only in breach of the marriage principles, the teachings of the Holy Bible, section 319 of the Code, but also the s. 36 of the Constitution, which prohibits inhuman treatment. You also hard no regard whatsoever to the interest of the children who needed able mothers to feed them and raise them.

There is no dispute that this is a worse case of grievous bodily harm because of the factors mentioned above. You therefore deserve to get the maximum prescribe penalty of 7 years imprisonment on both charges. This is in line with authorities like that of Ure Hane v The State [1984] PNGLR 105 and Goli Golu –vs- The State [1979] PNGLR 653. However, it is argued for you that I should give you a sentence lower that that on account of your guilty plea and that you are a first time offender.

Generally, a guilty plea by a first time offender brings his sentence to one less than the maximum prescribed in the exercise of the Courts discretion under s. 19 of the Code. Nevertheless in cases where the aggravating factors out weigh the mitigating factors such as a guilty plea, the maximum or higher sentence can be imposed. My brother Justice Injia, applied that principle in The State v. Kenneth Penias [1994] PNGLR 48. The Supreme Court approved an application of that principle in Seo Ross v. The State (30/04/99) SC605.

I find in your case, the factors in aggravation coupled with your failure to be remorseful and not showing any preparedness to change your ways and making things right with your victims serious. This out weighs you guilty plea and having no prior convictions. I make one observation however, about your having no prior convictions. While it is true that you have no formal record of a prior conviction against you, there is evidence of you previously attacking Lamokis in a more violent manner too. It is thus not necessarily correct to say that you are a first time offender, though it is correct that you have no prior conviction. So in my view the lack of conviction does not change the fact that you are man who is used to violently attacking your wives. It seems what you did to your two wives for which you are before me is a graduation from your previous practice to more severe and violent ones, having no respect for the dignity of your wives as human beings who need to be respect for what they are. They have given a number of children to you and are the ones who are responsible to raise them into men and women of tomorrow. When your kind of conduct goes unpunished or punished lightly, bad impressions and lessons are going to be passed onto your immediate children and other children in the community. That is a perfect recipe for turning out a very violent society.

Wife beating is on the increase rather than the opposite. This clearly speaks of past sentences failing to deter husbands from bashing up their wives. In some cases wives have died and in some cases they have been serious disabled. The Courts are only able to deal with those cases that came before them, but there are yet many cases that have not come before the Courts.

As I observed in other cases before, if for whatever reason a relationship between a husband and a wife turn bad, they should either seek counsel or if it is beyond repair, they should choose to go their separate ways instead of physically injuring or killing the other. In your case, it is not clear whether your relationship with your wives were good. It is not also clear why you ordered then to strip naked and asked them before that for their boyfriends’ names. It is therefore clear to me that you attacked them for no good a reason legal or otherwise.

Considering all of these, I find that this is one case in which the maximum prescribed penalty of 7 years should be imposed and I do so in respect of both charges. The only remaining question then is whether or not they should be made concurrent or cumulative. If made cumulative, there is the next question then of, whether 14 years will be too crashing.

In relation to the first question I note that there is no dispute that the sentence should be made cumulative because although they were committed at the same time and place, they were completely two different offences. It is not like say a case of armed robbery with violence resulting in injuries to the victims or one offence committed to commit or conceal another. The relevant principles on this are set out Acting Publice Prosecutor v. Haha [1981] PNGLR 205 and Public Prosecutor v. Kerua & Ors [1985] PNGLR 85. I referred to those principles and applied them in The State v. James Gurave Guba (19/12/00) N2020, which I need not restate save to say that this case falls under the second category, where two different victims are involved. Proceeding on that basis I agree that the sentence in this case should be made concurrent.

That leads to the next issue which is the totality issue. The cases just cited above deal with the relevant principles on that. These principles requires a consideration of the total effect of the cumulative sentence on the prisoner for a decision as to whether a cumulative sentence is appropriate or there ought to be variations to make the sentence not so crushing on a prisoner. Regard must of course, be had to the circumstances in which the offences were committed to arrive at a decision on that issue. Where the circumstances are such that, a strong deterrent sentence is called for then, there may be no need for a variation of the cumulative sentence. I did that in the James Gurave Guba case (supra) because I was of the view that he could have been charged with a more serious offence and he could have been looking at a sentence much higher than the total of the cumulative sentence.

In the present case, the offences were perpetrated against two women in much the same way. They both sustained serious injuries, which were very serious. If it were not for medical intervention they could have ended up with serious residual disabilities or even death. They were treat in a most in humane way by their own husband. He put them through shame, pain and suffering. On their own they both fall in my view in the worse category of grievous bodily harm. A charge of attempted murder could have been presented in respect of both charges. If that were done the total of that would have much more than 14 years.

Besides there is a need for a stronger deterrent sentence because of the never ending but ever increasing cases of wife bashing by husbands. At the same time, given that you have an habit of bashing your wives it will be necessary to keep you away from your wives as long as justice requires so that during the next few years your wives can be able to live without fear of being struck by you. During the next few years too you will have time to consider both the consequences of your past conduct and how you propose to behave in future. I suggest you give consideration to the two alternatives, which you face as a husband and Father of 12 children: either you can plant love and harvest respect or you can plant violence and harvest at best fear and at worst hatred.

The family unit is fundamental to society. Whenever it is weakened the nation suffers. One of the ways in which the family unit is weakened is wife bashing. Children get bad impressions and lessons in the process. As they grow up witnessing such things, and more so if such conduct is not met with sever penalties they will grow to viewing them as acceptable conducts. This would then plant the seeds for a more violent society tomorrow. Doubtless, there will be those who say that wife bashing is part of Melanesian life: it happens everywhere; all the time. The simple answer to such comments is that perhaps that is why there is so much crimes of violence through out the country today and as such it should be stop. It should be stopped because the Constitution says no to such conduct, the criminal law says no, the Bible says no and the Courts will and are saying no to anyone who appears before them for the reason just given.

Ultimately, therefore I do not consider that the total term of 14 years too crushing on you. I therefore order you to serve a cumulative sentence of 14 years in hard labour, which is effectively 7 years each for the two charges, of causing grievous bodily harm to two of your wives.
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Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor